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CHAPTER SEVEN
OTHER CRIMINAL DEFENSES
Learning Objectives
After reading this chapter, students will be able to:
2. Determine when, if ever, a mistake of fact or law may provide a defense.
4. State why the Double Jeopardy Clause prohibits successive prosecutions for the same
crime.
6. Define “acquittal” for purposes of the Double Jeopardy Clause.
8. List the factors that determine when a speedy trial violation has occurred.
Lesson Plan
Correlated to PowerPoints
I. Affirmative Defenses
A. An affirmative defense is any defense that assumes the complaint or charges to be
correct but raises other facts that, if true, would establish a valid excuse or
justification or a right to engage in the conduct in question.
B. It is generally agreed that a state may place the burden of proof for the
establishment of an affirmative defense on the defendant.
C. It is also generally agreed that a state may not shift the burden of proof on an
element of the crime to the defendant by designating the element as an affirmative
defense.
1. It is not always clear that the state has made this improper designation.
D. Affirmative defenses come from various sources
1. State or federal statutes, common law, and the U.S. Constitution
II. Immunity as a Defense
Learning Objective 1: Identify the kinds of immunity to criminal prosecution available, and
their limits.
Class Discussion/Activity
Discuss diplomatic immunity, legislative immunity and witness immunity.
What are the purposes of each? Should any be done away with?
Media Tool
Diplomatic immunity
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http://video.foxnews.com/v/2503097501001/edward-snowden-to-receive-
diplomatic-immunity-from-ecuador/?playlist_id=928378949001
o Video discusses the flight of Edward Snowden from prosecution
in the United States for the leading of NSA information.
o Discussion: why is it important to provide diplomatic immunity
to officials from other countries? How is this situation different
from what we normally think of as diplomatic immunity? Should
Snowden receive such immunity? Why/why not?
A. Diplomatic immunity
1. Based on an international agreement on the status of diplomats stationed
2. According to cases heard by the U.S. Supreme Court this immunity does
not apply to visiting U.N. officials and ends for the family at the age of 21.
3. Diplomatic immunity may be waived by the diplomat’s home country.
B. Legislative immunity
1. Representatives, senators, and state legislators have a limited degree of
temporary immunity while their legislative bodies are in session.
2. Members also enjoy limited immunity for all “legislative acts” taken by a
member as part of the “legislative process”.
Media Tool
Witness immunity
http://citizensvoice.com/news/witness-describes-friendship-between-mellow-
pnc-official-as-bromance-1.1510351
o Article describes the testimony of a witness who is guaranteed
immunity from prosecution.
o Discussion: what information is provided by the witness who
might otherwise plead the Fifth Amendment right to protection
from self-incrimination? How does the ability to provide such
immunity help prosecutors in gaining convictions in such cases?
C. Witness immunity
1. Both the federal government and the states have passed various immunity
2. Transactional immunity: Total or full immunity for the criminal offense to
which compelled testimony relates.
3. Use immunity: Prohibits prosecutorial authorities from using the compelled
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III. Mistake or Ignorance of Fact as a Defense
Learning Objective 2: Determine when, if ever, a mistake of fact or law may provide a defense.
What-If Scenario
Tina spent the day shopping at the mall. She went to the food court for lunch and set all of her
packages on the floor next to her table. As she was leaving Tina picked up all of the packages
and mistakenly took a package that belonged to the woman at the next table. If charged with
theft what is Tina’s best defense? How might she prove that taking the other woman’s package
was a mistake?
A. The common law rule is that an honest mistake or ignorance of fact is a defense if it
negates the existence of a state of mind essential to the crime.
B. Strict liability crimes and the defense of mistake
1. When a state legislature or the Congress of the United States creates a strict
liability crime, the defense of mistake of fact cannot be used, because criminal
liability comes from simply doing the forbidden act without any requirement
for the state or government to prove any mental fault
C. Mistake or ignorance of criminal law
2. Some exceptions exist
3. Mistake of law can provide a criminal defense if it negates a required mental
state
What-If Scenario
Timmy meets Jennifer at a party at a friend’s house. Timmy and Jennifer spend some time
talking at the party and decide to exchange phone numbers to go out at another time. Timmy
calls Jennifer the following week and they go out to dinner. After dinner Timmy takes Jennifer
back to his apartment and they have sex. Timmy drops Jennifer off at home later that evening.
The following day the police arrive at Timmy’s and arrest him for statutory rape. In meeting
with his attorney Timmy tells him that he was not aware that Jennifer was underage and he
should not be responsible for the crime because of his ignorance. What will Timmy’s attorney
likely tell him? Should ignorance be an excuse in this crime?
IV. Intoxication or Drugged Condition as a Defense
Class Discussion/Activity
Have students research the defense of voluntary intoxication in your state.
Is there still such a defense? What are the statute’s requirements?
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A. General intent crimes do not permit an intoxication defense.
B. Specific intent crimes do permit a voluntary intoxication defense but will likely result
in conviction of a lesser, general intent crime.
C. A few states have eliminated the voluntary intoxication defense entirely.
D. The involuntary intoxication or drugged condition can be a defense to a criminal
charge.
Media Tool
Involuntary intoxication as a defense
http://www.pennlive.com/midstate/index.ssf/2013/05/involuntary_intoxication_defen.html
o Article describes the failure of an involuntary intoxication defense by a
man who was taking Ambien.
o Discussion: why was the involuntary intoxication defense unsuccessful in
this case? Under what different circumstances might have the involuntary
intoxication defense been successful?
V. Duress, Coercion, or Compulsion as a Defense – Assignment 3
Learning Objective 3: Distinguish between the defense of duress and necessity.
A. Defendants must admit that they committed the offense charged but assert that they
were forced to do so to avoid death or serious bodily injury to themselves or others.
B. One area where duress or coercion is offered as a defense involves escape from prison
or other custody.
C. Duress or coercion is generally not a defense to a charge of murder.
VI. Necessity or Choice of Evils Defense
Learning Objective 3: Distinguish between the defense of duress and necessity.
What-If Scenario
An airplane crashes at night in an isolated area. It is very cold and rescue is not likely until
daylight, so the survivors break into a summer cottage and use the food and blankets in the
cottage to comfort the injured and sustain themselves until help arrives. What defense can the
survivors use if charged with burglary?
A. A defense to criminal prosecution on the grounds that the harm to be avoided
outweighed the harm caused by the crime committed. Necessity will not justify taking
VII. Can One Kill to Save Oneself?
Learning Objective 3: Distinguish between the defense of duress and necessity.
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A. United States v. Holmes
B. Rex v. Dudley and Stephens
Class Discussion/Activity
Do you concur with the jury’s decision and the court’s sentence in the case
of Rex v. Dudley and Stephens? What would you have done had you: (1)
been on the boat, (2) been a juror, (3) imposed the sentence?
IIX. Alibi as a Criminal Defense
What-If Scenario
Fred is charged with rape and has been identified by the victim as the man who raped her. Fred
uses the defense of alibi and argues that it was physically impossible for him to commit the rape
because he was at his church attending a bible study at the time. Who must be notified of Fred’s
intention to provide an alibi? How would an investigator corroborate this alibi?
1. Alibi notice statutes require defendants to make disclosures regarding their
cases. Such disclosure includes the place where the defendant claimed to have
been at the time the crime was committed and the names and addresses of
witnesses to the alibi, if known.
IX. The Defense That the Defendant Was Acting Under the Authority, Direction, or
Advice of Another
What-If Scenario
The local Girls Club plans to sell cookies outside of the town hall. The leader of the club talks to
the town mayor and he gives the club permission to sell cookies. While the girls are selling
cookies a law enforcement officer writes the group a ticket for selling cookies without a permit.
What defense would the leader of the club use in court? Would this defense likely be successful?
Why/why not?
A. The general rule is that one who performs a criminal act under the advice, direction,
or order of another cannot use such a defense.
B. The defense may be used when a defendant is given erroneous information by certain
officials.
X. The Defense of Double Jeopardy – Assignment 4
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Class Discussion/Activity
How would you explain the “Dual Sovereignty” doctrine the court referred
to in the United States v. Lara case? Since the Court held the double
jeopardy clause was not violated, could Lara have made a sound argument
that the second case should have been dismissed based upon res judicata or
collateral estoppel?
Learning Objective 4: State why the Double Jeopardy Clause prohibits successive prosecutions
for the same crime.
Learning Objective 5: Distinguish between a prosecution for the same offense and one for a
separate offense.
Learning Objective 6: Define “acquittal” for purposes of the Double Jeopardy Clause.
A. Double jeopardy means that a person who has been acquitted by a judge or a jury may
not be tried again, even if subsequent investigation reveals evidence that proves
conclusively that the defendant is guilty.
C. The times when jeopardy attaches
1. In a jury trial jeopardy attaches when the first juror is sworn
3. In the case of a mistrial the double jeopardy clause does not bar another
prosecution
D. Prosecution by both state and federal governments
1. Both state and federal prosecution are not in violation of the Fifth Amendment
2. Many states have passed legislation that forbids prosecution after another
jurisdiction has prosecuted the defendant for the same crime
E. The meaning of separate offense
1. Double jeopardy does not bar successive prosecutions of a defendant
2. Blockburger v. United States
a. The applicable rule is that where the same acts or transaction
constitutes a violation of two distinct statutory provisions, the test to
be applied to determine whether there are two offenses or only one is
whether one provision requires proof of an additional fact which the
other does not
XI. Entrapment and Outrageous Government Conduct as Defenses – Assignment 2
Learning Objective 7: Identify the tests that determine when government inducements become
entrapment.
A. The defense that a law enforcement officer used excessive temptation or urging to
wrongfully induce the defendants to commit a crime they would not have ordinarily
committed.
B. The U.S. Supreme Court that a defendant is entitled to an entrapment instruction to a
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jury.
C. A sting operation is not improper inducement to commit a crime if it merely provides
an opportunity to commit a crime.
D. Although law enforcement officers may create and present the usual and ordinary
opportunities for a person to commit a crime, they may not use excessive urging,
inducement, temptations, or solicitations to commit a crime.
2. Most states use common law definitions
3. Most states and the federal courts use the “origin of intent” test in determining
whether the defendant was predisposed to commit the crime charged
E. Denying the criminal act while using the defense of entrapment.
1. In Mathews v. United States the U.S. Supreme Court pointed out that such
inconsistent defenses have historically been permitted in federal prosecutions.
a. This is not a constitutional issue so states can decide whether to allow
or not.
b. Many states now permit inconsistent defenses
F. Outrageous government conduct.
2. If such conduct violated the due process rights of the defendant
3. Conduct that has been held to violate due process rights
a. Using a defendant’s attorney to gather information against him
4. Conduct that has been held not to violate due process rights
a. A civilian working with a police department having sex with a woman
to obtain evidence necessary to convict her of prostitution
b. Paying a defendant’s former girlfriend’s living expenses while she
assisted in building a criminal case against the defendant
c. A prosecutor giving false testimony in a hearing involving a criminal
trial
XII. The Defense that another Person Committed the Crime
A. There are a number of ways to prove that the wrong person has been charged with or
convicted of a crime
a. Providing exculpatory evidence is the easiest way
B. Can be easily abused
C. Most states have rules stating that before a witness can be allowed to offer evidence
to exculpate a defendant, there must be evidence of corroborating circumstances that
clearly indicate the trustworthiness of the statement
XIII. The Right to a Speedy Trial as a Defense
Learning Objective 8: List the factors that determine when a speedy trial violation has
occurred.
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Class Discussion/Activity
Have students research their state’s speedy trial statute and compare it to
the very detailed federal speedy trial law, 18 U.S.C. Section 3161.
Students can easily access federal criminal laws by typing in U.S. Code in
a search engine or using Westlaw, LexisNexis, or the LLI sites.
A. The four-factor balancing test is used to determine whether a speedy trial violation
has occurred
1. The factors are
a. the length of the delay
b. the reason for the delay
c. the defendant’s assertion of his or her right
d. the prejudice resulting from the delay
XIV. The Statute of Limitations as a Defense – Assignment 1
Learning Objective 8: List the factors that determine when a speedy trial violation has
occurred.
A. Statutes of limitations on criminal prosecutions are optional legislative enactments
B. A limitation statute is designed to protect individuals from having to defend
Lecture Notes
Chapter 7 looks at several defenses to criminal charges. Protection from double jeopardy and a
speedy trial are rights protected by the U.S. Constitution. In that sense they are quite different
from the other defenses studied in this chapter and previous chapters. Speedy trial challenges
are often not successful. Double jeopardy raises a lot of complicated legal issues. As discussed
in the textbook, it’s not always clear what is a separate offense and what is the “same element”
test. Students should have a clear understanding of how different elements for a similar crime
might not constitute double jeopardy and how a person might be charged and exonerated by the
state but later charged in federal court, especially if new elements are presented in order to prove
the case. Double jeopardy can be a difficult term for some students to understand because of
Entrapment is seldom successful and is not guaranteed by the Constitution. It is a product of
either statutory or common law. Law enforcement agencies have legal counsel that over the
years has helped departments formulate practices that keep officers from engaging in
entrapment. It is most commonly used in cases that involve undercover police investigations.
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One of the most famous cases where the defense was successful involved John De Lorean, the
designer and owner of the company that built the stainless steel sports car in the 1970s, called the
De Lorean. De Lorean’s company was in financial trouble, and he became the subject of an
undercover FBI sting operation, investigating whether he was trafficking in large amounts of
cocaine as a way of saving his failed business venture. He was charged and at trial the
government showed a tape of his conversations about selling drugs with the undercover agents.
He was acquitted, arguing that he was entrapped by the agents who had approached him as
legitimate businessmen.
Duress is a type of excuse defense. The defendant argues, “I committed the crime, but I’m not
culpable because I was coerced into committing the crime. It was not an act of my free will.”
Students may not know about the case of Patty Hearst, the California newspaper heiress and
granddaughter of William Randolph Hearst, who was kidnapped in 1974 by the Symbionese
Liberation Party, a radical guerilla organization that demanded her family distribute food and
money to the poor. Patty eventually joined efforts with her captors and participated in a bank
robbery. She was arrested, found guilty and served two years in prison. She defended herself by
Students may have a difficult time believing that corroboration is necessary when a defendant
asserts that another person committed the crime. Discuss the issues with this defense. Discuss
with students why a person might confess to a crime they did not commit. The text lists the
reasons of financial gain and coercion. What other reasons did the students’ come up with? What
reasons are listed by The Innocence Project? Perhaps tie this discussion in with the activity
where students research The Innocence Project online.
Key Terms
corpus delicti – In all criminal cases, the government must prove that the crime charged was
committed (corpus delicti) and that the defendant was party to the crime (committed the crime or
was an accomplice). (p. 170)
affirmative defense – A defense to a criminal charge in which the defendant generally admits
doing the criminal act but claims an affirmative defense such as duress (he or she was forced) or
entrapment. (p. 170)
use immunity – Prohibits prosecutorial authorities from using the compelled testimony in a
criminal prosecution, but does not make the witness totally immune from prosecution based on
evidence other than the witness’s testimony and not derived from that testimony. (p. 173)
mistake of law – A claim by a defendant that the defendant did not know the action taken
violated the criminal law. (p. 177)
duress – A defense to criminal prosecution on the grounds that the defendant was forced to
commit the criminal act. (p. 178)
coercion – A person who forces (coerces) another to commit a crime can be charged and
convicted of the crime committed in addition to other offenses. (p. 178)
necessity – A defense to criminal prosecution on the grounds that the harm to be avoided
outweighed the harm caused by the crime committed. Necessity will not justify taking another
person’s life. (p. 179)
alibi – A defense to criminal prosecution on the grounds that the defendant physically could not
have committed the crime because at the time the crime was committed, he or she was in another
place. (p. 182)
entrapment – The defense that a law enforcement officer used excessive temptation or urging to
wrongfully induce the defendants to commit a crime they would not have ordinarily committed.
(p. 185)
double jeopardy – A defense to prosecution, stated in the Fifth Amendment, on the grounds that
the defendant has been tried before on the same charge, and acquitted. (p. 185)
Assignments
1. Have students research a variety of their state’s criminal code for the statute of limitations
for various criminal offenses. Have them compare the limitations for different categories
of offenses and explain why the differences exist. What is the statute of limitations in
your state for bringing a charge of rape? Can you make an argument that the limitations
statute should be expanded or eliminated based on advances in the science of DNA? [LO
2. Have students research the entrapment defense in their state. They can begin by looking
at the criminal code’s provisions, but their research shouldn’t end there. They can use
Westlaw or LexisNexis to research case law in their state by searching key words such as
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3. Students should research their state’s defense of duress or coercion. What are the
restrictions on the defense? Can a defendant plead duress to the crime of murder? To
4. Have students research cases concerning ignorance of the law. Discuss the reasons for the
changes in such a defense. Have students discuss why ignorance of the law may, in some
5. Have students research double jeopardy. Consider reading:
http://www1.apsu.edu/oconnort/3000/3000lect05b.htm
Have your students discuss the issues with double jeopardy and especially the concern
Case Analysis and Writing Exercises
1. Assume a defendant is observed by police officer A walking down the street carrying a
weapon. A few moments later, the defendant is observed by police officer B walking down
another street carrying the same weapon. The defendant, a convicted felon, is arrested and
charged two counts of illegal possession of a weapon. Has he committed two crimes, or one?
If only one, the Double Jeopardy clause prohibits two convictions for the same offense. If
you conclude only one offense has occurred, how did the state convince the court otherwise
in Commonwealth v. Horne, 995 N.E.2d 773 (Mass. 2013)?
2. Where should the entrapment line be drawn on government “sting” inducements that
persuade the recruited person to commit a crime? For example, suppose a confidential
informant (CI) working for the FBI is told to find “disaffected Muslims who might be
harboring terrorist designs in the United States”. The CI finds the defendant, a Muslim who
is an impoverished, small-time criminal who worked nights at a Walmart store and made
about $14,000.00 per year. The defendant undeniably hated Jews and Americans, and
professed a wish to die as a martyr. After months of cultivating the relationship, the CI offers
the defendant $250,000.00 to fund attacks on an airport and synagogues in New York. The
defendant agrees, and recruits a “team” to help him. The CI provides the team with fake
bombs and Stinger missiles, and shows the team how to use them. When the team prepares to
use them the FBI arrests them and charges them with conspiracy to commit terrorist acts.
3. In this chapter we note that if a defendant seeks and obtains a mistrial, the prosecution
ordinarily may retry the defendant with no double jeopardy restraints. If it is the prosecution
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that obtains the mistrial, double jeopardy requires that the prosecution show the mistrial was
necessary as “the only reasonable alternative to ensure justice.” What if the trial judge, on her
own motion (called “sua sponte”) declares a mistrial because she believes she can no longer
be objective in her role as a trial judge? Can the prosecution retry the defendant on the same
charges? Who has the burden to suggest alternatives to the trial judge before she declares a
4. The defendant was required under Kentucky law to register as a convicted sex offender.
The registration statute stated that a registrant must register a new address before moving
from the current address. The state police are required to send a change of address
registration form to persons required to register every 90 days. When the defendant moved a
few miles from his parents, where he was registered as residing, to start work on a new job,
he did not send a registration notice to the local parole office as required. When, two months
later, he was discovered residing at his new residence (his girlfriend’s house) he was charged
with violation of the registration law, which makes it a crime to “knowingly” fail to register a
new address. Defendant states as his defense that he thought he was supposed to wait for the
next address verification to be sent to him, and only then register at his new address. Is this a